Commercial Law Commons^™

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …

The Missing Preferred Return, Victor Fleischer

ExpressO

Managers of buyout funds typically offer their investors an 8% preferred return on their investment before they take a share of any additional profits. Venture capitalists, on the other hand, rarely offer a preferred return. Instead, VCs take their cut from the first dollar of nominal profits. This disparity between venture funds and buyout funds is especially striking because the contracts that determine fund organization and compensation are otherwise very similar. The missing preferred return might suggest that agency costs pose a larger problem in venture capital than previously thought. Is the missing preferred return evidence, perhaps, that VCs are …

Contingency And Contracts: A Philosophy Of Complex Business Transactions, Jeffrey Marc Lipshaw

ExpressO

In this article, I argue that the prevailing literature on contract theory does not adequately address the way real-world lawyers address uncertainty in complex business transactions. I attribute this to the constraints imposed by thinking in legal models, the dominant tendency to turn to economics for analysis and normative prescription, and the focus on adjudicative issues of hindsight interpretation. Commercial uncertainty, and the law’s response to it, is only a subset of the broader philosophical issue of contingency. As an alternative to prevailing thought, I trace philosophical approaches to contingency, utility and morality that have come down to us since …

A Seller's Responsibilities To Remote Purchasers For Breach Of Warranty In The Sales Of Goods Under Washington Law, Thomas J. Holdych

Seattle University Law Review

The article examines Washington law pertaining to a seller's obligations to a remote purchaser with respect to the quality of goods, attending in particular to the judicially created exceptions to the privity requirement. 20 Part II explores the reasons a seller may provide and a buyer may purchase a warranty, reasons that bear on resolution of the question whether the privity requirement should be retained. Parts III and IV analyze not only what warranty obligations a seller may have to a remote purchaser but also the theoretical bases for those obligations and the manner in which those obligations may be …

Obscene Contracts: The Doctrine Of Unconscionability And Hospital Billing Of The Uninsured, George A. Nation Iii

Kentucky Law Journal

No abstract provided.

Naked Before The Law: Reality Porn And The Capacity To Contract, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal challenges surrounding reality pornography, particularly through the lens of the Girls Gone Wild series, highlighting the tension between First Amendment protections for producers and the rights of participants. It argues that the legal framework governing consent, exploitation, and contractual agreements in this context is unclear and often fails to protect participants, many of whom face severe consequences. The analysis underscores the complexities of balancing public interest, contractual capacity, and the rights of minors in this lucrative yet legally fraught industry.

Sales, Carolyn L. Dessin, Keith A. Rowley, Robyn L. Meadows, Larry T. Garvin

Akron Law Faculty Publications

This article provides a comprehensive survey of significant developments in sales law under Article 2 of the Uniform Commercial Code (UCC) during the year 2004. The authors analyze key judicial decisions that interpret and apply various provisions of Article 2, covering topics such as contract formation, the statute of frauds, warranties, performance, remedies, and risk of loss. By examining these cases, the article offers insights into how courts are shaping the landscape of sales law, highlighting trends and emerging issues that practitioners and scholars should be aware of.

Contracting Spyware By Contract, Jane K. Winn

Articles

The question of what constitutes "spyware" is controversial because many programs that are adware in the eyes of their distributors may be perceived as spyware in the eyes of the end user. Many of these programs are loaded on the computers of end users after the end user has agreed to the terms of a license presented in a click-through interface.

This paper analyzes whether it might be possible to reduce the volume of unwanted software loaded on end users' computers by applying contract law doctrine more strictly. Unwanted programs are often bundled with programs that the end user wants, …

Restitution, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Little of significance was decided on the law of restitution in 2004. There was nevertheless a smattering of cases dealing with points relevant to the principles of the law of restitution, sometimes directly, and sometimes indirectly.

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

Small Business And The False Dichotomies Of Contract Law, Larry Garvin

The Ohio State University Moritz College of Law Working Paper Series

The article explores the classic consumer- merchant dichotomy from the vantage of small businesses. Using empirical data and the psychology, economics, and management literature, it shows that small businesses, treated like large businesses throughout most of contract and commercial law, in fact behave more like consumers. Small businesses lack the financial strength of large businesses. They generally lack the information gathering ability of large businesses. Finally, they generally are more prey to cognitive errors than are large businesses. As a result, small businesses lose in two ways. When they deal with consumers, they are presumed to have the power, information, …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

The End Of Notice: Secrets And Liens In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article explores important recent changes in the way that we treat personal property in commercial finance transactions. Among other things, these changes reduce or eliminate the obligation to give notice of interests in personal property when it is used in commercial finance transactions (as, e.g., collateral for a loan).

A principal purpose of notice-filing has been to deter the creation of secret liens, interests in property that are neither recorded nor otherwise readily observable. Secret liens are universally castigated as abhorrent.

Yet, two recent sets of legislative developments suggest that we may care much less about the problem of …

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

Thinking Like A Deal Lawyer, Tina L. Stark

Journal of Legal Education

No abstract provided.

Leaving Money On The Table: Contract Practice In A Low-Trust Environment, Ruben Kraiem

ExpressO

Social capital – the level of trust inherent in a society – will affect the contracting practices that are considered standard, practical or fair. These practices in turn will help determine the parties’ positions as they approach their negotiation, how they will communicate, and what terms they will agree in any particular transaction. This is true not only for the small transaction, but also for large and complex deals. As a result, when operating in a low-trust environment, even sophisticated parties (who can bear the costs of tailoring an agreement to their particular case), will be prone to relinquish or …

Erisa: Re-Thinking Firestone In Light Of Great-West - Implications For Standard Of Review And The Right To A Jury Trial In Welfare Benefit Claims, 37 J. Marshall L. Rev. 629 (2004), Donald T. Bogan

UIC Law Review

No abstract provided.

How To Keep The Lights On: An Exploration Of The Abrogration Of Wholesale Energy Contracts, 38 J. Marshall L. Rev. 303 (2004), Brian Bassett

UIC Law Review

No abstract provided.

Gollum, Meet Sméagol: A Schizophrenic Rumination On Mediator Values Beyond Self-Determination And Neutrality, James R. Coben

Cardozo Journal of Conflict Resolution

Let me begin by declaring my biases. First, I am a dissatisfied consumer of mediation services, having represented both employment discrimination and family law clients in mediations. The mediators' rapid retreat to caucus, their tendency to incorrectly evaluate my clients' cases, and their strong push for particular settlement structures while simultaneously proclaiming process neutrality, all too frequently have left me (and my clients) disappointed and disillusioned. Second, I am a chronicler of "mediation car wrecks" - a voyeur, if you will, of those times when mediations go so badly that the parties end up disputing about them in court. Third, …

Creditors' Rights Risk: A Title Insurer's Perspective, 38 J. Marshall L. Rev. 223 (2004), Paul L. Hammann, John C. Murray

UIC Law Review

No abstract provided.

One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 1 Of 2), Keith A. Rowley

Scholarly Works

This article examines four major differences between Revised Article 1 of the Uniform Commercial Code and Nevada's current (as of 2004) version of Article 1, codified at N.R.S. §§ 104.1101 et seq.

Sales, Carolyn L. Dessin, Keith A. Rowley, Robyn L. Meadows, Larry T. Garvin

Akron Law Faculty Publications

This article provides a comprehensive survey of significant developments in sales law under Article 2 of the Uniform Commercial Code (UCC) during the year 2003. The authors analyze key judicial decisions that interpret and apply various provisions of Article 2, covering topics such as contract formation, the statute of frauds, warranties, performance, remedies, and risk of loss. By examining these cases, the article offers insights into how courts are shaping the landscape of sales law, highlighting trends and emerging issues that practitioners and scholars should be aware of.

Contracting Under Amended 2-207 (Freedom From Contract Symposium), James J. White

Articles

Amended Section 2-207 of the Uniform Commercial Code1 (the Code) states new contract rules. I call these "contract rules" to avoid the labels of contract formation and contract interpretation. These new rules cure many of the problems presented by current Section 2-2072 and remind courts that the purpose of Section 2-207 is to interpret a contract that has been made, not to see if a contract exists. One is tempted to label current Section 2-207 as a contract formation provision-and to some extent that would be right-but most of this Section's work has been in contract interpretation, not in contract …

Course Of Performance As Evidence Of Intent Or Waiver: A Meaningful Preference For The Latter And Implications For Newly Broadened Use Under Revised U.C.C. Section 1-303, Jack M. Graves

Scholarly Works

No abstract provided.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Bounded Rationality, The Doctrine Of Impracticability, And The Governance Of Relational Contracts, Donald J. Smythe

ExpressO

This article uses a behavioral economics approach to analyze the effects of the doctrine of impracticability on “relational” contracts -- long-term contractual agreements that are typically adapted to changed circumstances and unforeseen contingencies as they arise. In contrast to conventional law and economics studies, the article concludes that the impracticability doctrine has the potential to improve the efficiency and productivity of a wide range of long-term contractual agreements, and offers normative guidelines as to how the doctrine should be applied. The article also examines and rejects various philosophical objections to the impracticability doctrine, such as the arguments that it interferes …

The Sense And Nonsense Of Web Site Terms Of Use Agreements, Sharon Sandeen

Faculty Scholarship

This article examines the purpose, use and enforceability of TOUs. In so doing it looks beyond the common question of whether TOUs are enforceable to ask whether and under what circumstances TOUs are necessary. This article explores whether the nature of the Internet is so different from the brick-and-mortar world that TOUs are needed for web sites but not for retail stores. A review of many of the existing TOUs reveals that major differences exist in the number and nature of their provisions. On one extreme are the TOUs of companies like Disney, Barnes and Noble and Amazon that apparently …